UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Francis Wilson Mezan, Petitioner Case No. 19-cv-816-SM v. Opinion No. 2019 DNH 175
U.S. Department of Homeland Security, Acting Secretary Kevin K. McAleenan; Immigration and Customs Enforcement, Acting Field Office Director Marcos Charles; and Strafford County Department of Corrections, Superintendent Christopher Brackett, Respondents
O R D E R
Before the court is Francis Wilson Mezan’s petition for a
writ of habeas corpus under 28 U.S.C. § 2241 (document no. 1),
which petitioner filed while being held at the Strafford County
Department of Corrections (“SCDC”), in the custody of
Immigration and Customs Enforcement (“ICE”). Mezan requests
release or, in the alternative, an immediate bond hearing. For
the reasons that follow, Mezan’s petition is denied without
prejudice.
BACKGROUND
Mezan was born in Khartoum, Sudan, in 1990. When he was
nine years old, his father was killed, and his mother was
kidnapped, detained, and beaten. Mezan’s parents were
purportedly targeted by the Sudanese government because of his father’s work for a Christian aid organization, the family’s
Christian religion, and imputed anti-government political
opinions. Mezan and his family fled Sudan, living as refugees
in Egypt until Mezan was admitted to the United States in 2007,
settling in Maine. Mezan did not adjust his status to that of
lawful permanent resident; he remained a refugee.
In August, 2011, Mezan was convicted in the Superior Court
of Portland, Maine, for the offenses of criminal threatening
with a firearm, and criminal threatening with a dangerous
weapon. As a result of his convictions, on September 22, 2011,
ICE charged Mezan with removability under 8 U.S.C. § 1227(a)(2).
Mezan applied for adjustment of status and a refugee waiver, as
well as asylum, and sought withholding and deferral of removal
under the Convention Against Torture (“CAT”). An immigration
judge (“IJ”) denied substantive relief, but deferred removal to
Sudan under the CAT. Mezan’s order of removal became final on
August 27, 2012, after exhaustion of his appeal.
Mezan was released from custody in March of 2012. In
September and November of 2018, Mezan was convicted of several
crimes, including: assault, driving while intoxicated, unlawful
possession of a controlled substance, multiple probation
violations, and failure to provide his correct name, address and
date of birth. 2 As a result of Mezan’s continued criminal activity, his
case again came to ICE’s attention. ICE determined that Mezan’s
parents were born in what is now the Republic of South Sudan
(which gained independence from the Sudan in 2011). Because
Mezan’s parents were born in South Sudan, ICE reasoned that
Mezan is likely a South Sudanese citizen. Accordingly, on
November 29, 2018, ICE arrested Mezan so that South Sudanese
officials could interview him to determine whether Mezan is, in
fact, a citizen of South Sudan, and to decide whether to issue
him a travel document. Since November 29, 2018, Mezan has been
detained at the Strafford County Department of Corrections in
Dover, New Hampshire.
On or about November 28, 2018, ICE provided Mezan with a
Notice to Alien of File Custody Review, which stated that ICE
would conduct his custody review on or about February 27, 2019,
and that he could submit documentation to ICE in support of his
release prior to that date. On December 4, 2018, ICE gave Mezan
a Notice of Revocation of Release, which stated that ICE had
revoked his release because his case was under review by South
Sudan for issuance of a travel document that would allow ICE to
effect his order of removal.
On December 20, 2018, Mezan filed a motion to reopen his
removal proceedings with the Boston immigration court. He 3 sought to stop his removal to South Sudan, and to present
evidence that he was entitled to deferral relief under the CAT.
Mezan’s motion was denied on February 11, 2019. Mezan appealed
that denial, which appeal is currently pending before the Board
of Immigration Appeals (BIA).
In February of 2019, Mezan filed a habeas corpus petition
in this court. He sought to prevent his removal while he
pursued his motion to reopen the removal proceedings. See Mezan
v. DHS, et. al., 19-cv-000198-JL, U.S.D.C., D.N.H. (“Mezan I”).
In the course of that action, Mezan and the Government reached
an agreement. The Government agreed not to remove Mezan from
the United States prior to the BIA’s ruling on Mezan’s motion to
reopen his case, and Mezan filed a voluntary dismissal of the
petition. As part of that agreement, Mezan acknowledged that a
stay of removal would result in his continued detention. See
Gov. Mot. to Dismiss, Exh. B, ¶ 4 and Attachment 1 (Mar. 1,
2019, email from petitioner’s counsel stating, “we understand
that [Mezan] will not be released.”). The stipulated order of
dismissal was approved by the court on March 7, 2019.
On August 5, 2019, Mezan filed this habeas corpus petition,
in which he seeks an order of immediate release, or a bond
hearing. The Government objects, and has moved to dismiss his
Petition. 4 DISCUSSION
While this court’s jurisdiction over immigration cases is
curtailed by the REAL ID Act, 8 U.S.C. § 1252, the court may
still review habeas challenges to unlawful immigration
detention. See Aquilar v. U.S. Immigration & Customs
Enforcement Div. of Homeland Sec., 510 F.3d 1, 11 (1st Cir.
2007) (“[D]istrict courts retain jurisdiction over challenges to
the legality of detention in the immigration context.”).
Petitioner claims habeas relief on the grounds that his current
post-removal detention is unlawful.
In support of his petition, Mezan argues that his continued
detention is prohibited by the Supreme Court’s holding in
Zadvydas v. Davis, 533 U.S. 678 (2001), because he has been
detained for more than six months, and his actual removal date
is not reasonably foreseeable. Mezan says that he has raised
meritorious challenges to his removal before the BIA, and,
therefore, faces removal proceedings for an indefinite period of
time. He further argues that an in-person custody determination
must be provided under the due process clause, because he has
been detained for longer than six months. 1
1 In his petition, Mezan also argued that he was unlawfully re-detained, and that the Government revoked his order of supervision without notice and an opportunity to be heard, in violation of 8 U.S.C. § 1231 and the Due Process Clause. He 5 The provisions of 8 U.S.C. § 1231(a)(6) apply to aliens,
like Mezan, who are subject to a final order of removal. 2 In
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Francis Wilson Mezan, Petitioner Case No. 19-cv-816-SM v. Opinion No. 2019 DNH 175
U.S. Department of Homeland Security, Acting Secretary Kevin K. McAleenan; Immigration and Customs Enforcement, Acting Field Office Director Marcos Charles; and Strafford County Department of Corrections, Superintendent Christopher Brackett, Respondents
O R D E R
Before the court is Francis Wilson Mezan’s petition for a
writ of habeas corpus under 28 U.S.C. § 2241 (document no. 1),
which petitioner filed while being held at the Strafford County
Department of Corrections (“SCDC”), in the custody of
Immigration and Customs Enforcement (“ICE”). Mezan requests
release or, in the alternative, an immediate bond hearing. For
the reasons that follow, Mezan’s petition is denied without
prejudice.
BACKGROUND
Mezan was born in Khartoum, Sudan, in 1990. When he was
nine years old, his father was killed, and his mother was
kidnapped, detained, and beaten. Mezan’s parents were
purportedly targeted by the Sudanese government because of his father’s work for a Christian aid organization, the family’s
Christian religion, and imputed anti-government political
opinions. Mezan and his family fled Sudan, living as refugees
in Egypt until Mezan was admitted to the United States in 2007,
settling in Maine. Mezan did not adjust his status to that of
lawful permanent resident; he remained a refugee.
In August, 2011, Mezan was convicted in the Superior Court
of Portland, Maine, for the offenses of criminal threatening
with a firearm, and criminal threatening with a dangerous
weapon. As a result of his convictions, on September 22, 2011,
ICE charged Mezan with removability under 8 U.S.C. § 1227(a)(2).
Mezan applied for adjustment of status and a refugee waiver, as
well as asylum, and sought withholding and deferral of removal
under the Convention Against Torture (“CAT”). An immigration
judge (“IJ”) denied substantive relief, but deferred removal to
Sudan under the CAT. Mezan’s order of removal became final on
August 27, 2012, after exhaustion of his appeal.
Mezan was released from custody in March of 2012. In
September and November of 2018, Mezan was convicted of several
crimes, including: assault, driving while intoxicated, unlawful
possession of a controlled substance, multiple probation
violations, and failure to provide his correct name, address and
date of birth. 2 As a result of Mezan’s continued criminal activity, his
case again came to ICE’s attention. ICE determined that Mezan’s
parents were born in what is now the Republic of South Sudan
(which gained independence from the Sudan in 2011). Because
Mezan’s parents were born in South Sudan, ICE reasoned that
Mezan is likely a South Sudanese citizen. Accordingly, on
November 29, 2018, ICE arrested Mezan so that South Sudanese
officials could interview him to determine whether Mezan is, in
fact, a citizen of South Sudan, and to decide whether to issue
him a travel document. Since November 29, 2018, Mezan has been
detained at the Strafford County Department of Corrections in
Dover, New Hampshire.
On or about November 28, 2018, ICE provided Mezan with a
Notice to Alien of File Custody Review, which stated that ICE
would conduct his custody review on or about February 27, 2019,
and that he could submit documentation to ICE in support of his
release prior to that date. On December 4, 2018, ICE gave Mezan
a Notice of Revocation of Release, which stated that ICE had
revoked his release because his case was under review by South
Sudan for issuance of a travel document that would allow ICE to
effect his order of removal.
On December 20, 2018, Mezan filed a motion to reopen his
removal proceedings with the Boston immigration court. He 3 sought to stop his removal to South Sudan, and to present
evidence that he was entitled to deferral relief under the CAT.
Mezan’s motion was denied on February 11, 2019. Mezan appealed
that denial, which appeal is currently pending before the Board
of Immigration Appeals (BIA).
In February of 2019, Mezan filed a habeas corpus petition
in this court. He sought to prevent his removal while he
pursued his motion to reopen the removal proceedings. See Mezan
v. DHS, et. al., 19-cv-000198-JL, U.S.D.C., D.N.H. (“Mezan I”).
In the course of that action, Mezan and the Government reached
an agreement. The Government agreed not to remove Mezan from
the United States prior to the BIA’s ruling on Mezan’s motion to
reopen his case, and Mezan filed a voluntary dismissal of the
petition. As part of that agreement, Mezan acknowledged that a
stay of removal would result in his continued detention. See
Gov. Mot. to Dismiss, Exh. B, ¶ 4 and Attachment 1 (Mar. 1,
2019, email from petitioner’s counsel stating, “we understand
that [Mezan] will not be released.”). The stipulated order of
dismissal was approved by the court on March 7, 2019.
On August 5, 2019, Mezan filed this habeas corpus petition,
in which he seeks an order of immediate release, or a bond
hearing. The Government objects, and has moved to dismiss his
Petition. 4 DISCUSSION
While this court’s jurisdiction over immigration cases is
curtailed by the REAL ID Act, 8 U.S.C. § 1252, the court may
still review habeas challenges to unlawful immigration
detention. See Aquilar v. U.S. Immigration & Customs
Enforcement Div. of Homeland Sec., 510 F.3d 1, 11 (1st Cir.
2007) (“[D]istrict courts retain jurisdiction over challenges to
the legality of detention in the immigration context.”).
Petitioner claims habeas relief on the grounds that his current
post-removal detention is unlawful.
In support of his petition, Mezan argues that his continued
detention is prohibited by the Supreme Court’s holding in
Zadvydas v. Davis, 533 U.S. 678 (2001), because he has been
detained for more than six months, and his actual removal date
is not reasonably foreseeable. Mezan says that he has raised
meritorious challenges to his removal before the BIA, and,
therefore, faces removal proceedings for an indefinite period of
time. He further argues that an in-person custody determination
must be provided under the due process clause, because he has
been detained for longer than six months. 1
1 In his petition, Mezan also argued that he was unlawfully re-detained, and that the Government revoked his order of supervision without notice and an opportunity to be heard, in violation of 8 U.S.C. § 1231 and the Due Process Clause. He 5 The provisions of 8 U.S.C. § 1231(a)(6) apply to aliens,
like Mezan, who are subject to a final order of removal. 2 In
Zadvydas, the Supreme Court addressed constitutional limits upon
the duration of post-removal-period detention under Section
1231. Typically, when a final order of removal has been
entered, the Government “secures the alien’s removal during a
subsequent 90-day statutory ‘removal period,” during which time
the alien is normally held in custody.” Zadvydas, 533 U.S. at
682. However, in circumstances where detention extends beyond
the 90-day statutory period, Section 1231(a)(6) provides that
the alien “may be detained” beyond the removal period. The
Supreme Court noted that indefinite mandatory detention
following the issuance of a removal order and expiration of the
removal period pursuant to § 1231(a)(6) would “raise serious
constitutional concerns,” id., and “construe[d] the statute to
contain an implicit ‘reasonable time’ limitation,” adopting six
months after entry of the final removal order as a
“presumptively reasonable period.” Id. at 682, 701. After that
six month period has passed, “once the alien provides good
reason to believe that there is no significant likelihood of
subsequently withdrew that claim. See Pet.’s Mem. in Opp. To Mot. to Dismiss at n.1.
2 Petitioner does not contend that 8 U.S.C. § 1226 applies to his current detention. 6 removal in the reasonably foreseeable future, the Government
must respond with evidence sufficient to rebut that showing.”
Id.
Mezan has been detained for longer than six months.
Therefore, the first prong of Zadvydas is satisfied. At the
core of this dispute is whether Mezan’s removal date is
reasonably foreseeable. As previously noted, the parties agreed
in an earlier case that Mezan will not be removed from this
country pending resolution of his appeal of the IJ’s denial of
his motion to reopen. But, says the Government, because South
Sudan has agreed to accept Mezan, no obstacle exists to removing
him following resolution of that appeal.
According to the Government, that Mezan remains in
detention (rather than, presumably, residing in South Sudan) is
a matter of his own choice, as he has chosen to seek stays of
and challenge his removal. Mezan could readily agree to removal
now and be free but for the fact that the parties agreed he
would not be removed to South Sudan pending completion of his
BIA appeal. Mezan’s continued detention, the Government says,
is due to that agreement. Moreover, the Government argues,
Mezan has a criminal record, and, therefore, may be detained
beyond the 90-day removal period, under the provisions of 8
U.S.C. § 1231(a)(6). 7 In response, Mezan argues that the Government cannot
lawfully remove him to South Sudan, where, he contends, he is
likely to be tortured, without first affording him the
opportunity to apply for relief from removal to that particular
country. Mezan concedes that this court is not the proper forum
in which to challenge the legality of his removal to South Sudan
(see pet.’s mem. in opp. at 8-9). But, he says, the point is
nevertheless relevant to his present habeas proceeding because
it bears on whether his removal date is reasonably foreseeable.
Because he has raised a strong challenge to his removal, he
says, it is not likely that he will be removed in the reasonably
foreseeable future.
This case is not like Zadvydas, in that, unlike the
petitioners in Zadvydas, Mezan’s detention has a definite and
certain end. In Zadvydas, the petitioners were in “removable-
but-unremovable limbo,” Jama v. Immigration & Customs Enf't, 543
U.S. 335, 347 (2005), either because the petitioners’ country
was unwilling to accept them, or because the United States did
not have an extradition treaty with the petitioners’ receiving
countries. Zadvydas, 533 U.S. at 684-686. Here, South Sudan
has issued Mezan a travel permit, which, although now since
expired, demonstrates its willingness to accept Mezan. Indeed,
the government represents that it is in the process of obtaining
8 an updated travel permit. See Document No. 9-1 at ¶ 32. So,
pending resolution of his appeal, Mezan will definitely be
released from detention, either to remain in the United States,
or to be removed to South Sudan. The delay in his removal is a
function of his desire to remain and the government’s agreement
not to remove (pursuant to which Mezan understood “he [would]
not be released”), pending the outcome of his BIA appeal.
As the Supreme Court wrote in Zadvydas, 533 U.S. at 701,
the six-month “presumption, of course, does not mean that every
alien not removed must be released after six months. To the
contrary, an alien may be held in confinement until it has been
determined that there is no significant likelihood of removal in
the reasonably foreseeable future.” In contrast to the
petitioners in Zadvydas, Mezan is not “condemned to an
indefinite term of imprisonment within the United States.” Id.
at 695. The delay here is attributable to Mezan’s efforts to
reverse the removal order, and the government’s indulgence.
Mezan is certainly entitled to pursue that relief, but his claim
that those efforts necessarily render his detention “indefinite”
are not persuasive.
Mezan has not shown that there is no likelihood of his
removal in the reasonably foreseeable future. Therefore,
Mezan’s detention remains statutorily authorized, and his 9 petition will be dismissed, but without prejudice. Petitioner’s
circumstances may change. Therefore, in the event that he can
make a showing that there is no significant likelihood of
removal in the reasonably foreseeable future (or if he faces
imminent removal and has a basis upon which to seek habeas
relief), Mezan may file a new § 2241 petition.
CONCLUSION
For the reasons set forth above and in the government’s
objection to Mezan’s petition (documents no. 9, 13), the court
finds that Mezan has not satisfied his obligation to show that
his removal is not likely in the reasonably foreseeable future.
Accordingly, his petition for a writ of habeas corpus is DENIED
without prejudice.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
October 1, 2019
cc: All counsel of record